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Cooper v. Meritor, Inc.

United States District Court, N.D. Mississippi, Greenville Division

February 11, 2019

BRENDA J. COOPER, et al. PLAINTIFFS
v.
MERITOR, INC., et al. DEFENDANTS

          ORDER

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE.

         Before the Court in these consolidated cases is the “Plaintiffs' Motion to Exclude Reports and Opinions of the United States Environmental Protection Agency.” Doc. #589.

         I Relevant Background

         These consolidated cases involve claims for property damage arising from decades of operation of a manufacturing facility (“Facility”) in Grenada, Mississippi. The plaintiffs, all property owners or former property owners of land in Grenada's Eastern Heights subdivision, allege that the defendants negligently operated the Facility and that such negligence resulted in the contamination of Eastern Heights.

         During discovery, Meritor Inc., The Boeing Company, and Rockwell Automation, Inc. (“Meritor Defendants”) designated as a non-retained expert witness the United States Environmental Protection Agency (“EPA”). Doc. #508-1. As a part of the designation, the Meritor Defendants represented: “The general nature of the subject matter upon which the Defendants will rely upon from the U.S. EPA concerns the environmental studies conducted in the Eastern Heights Neighborhood and the reports and other government records, including the opinions, analysis and data therein, attached as Exhibit H.” Id. at 4. This expert designation was voluntarily withdrawn by the Meritor Defendants after the plaintiffs moved to strike the disclosure. Doc. #520. Despite the withdrawal, the Meritor Defendants relied on the EPA's reports in support of numerous Daubert motions and in summary judgment briefs.

         On May 9, 2018, the plaintiffs moved to exclude the EPA reports as undisclosed expert testimony under Federal Rule of Civil Procedure 26 and as unreliable expert testimony under Daubert and its progeny. Doc. #589. The Meritor Defendants respond that the reports are not expert reports and, therefore, are not subject to expert admissibility requirements. Doc. #651 at 8.They further contend that the reports are admissible under Federal Rule of Evidence 803(8) as public records. Id. at 9-10. In reply, the plaintiffs appear to concede that Rule 26(a)'s expert designation requirements do not apply to the EPA reports[1] but contend that the reports are excludable under Daubert and are otherwise inadmissible as public records. See generally Doc.#728.

         II Relevant Considerations

         Federal Rule of Evidence 803(8), which governs the admissibility of public records, provides:

         A record or statement of a public office [is not excludable under the rule against hearsay] if:

         (A) it sets out:

(i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

         (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness. In Beech Aircraft Corp. v. Rainey, the United States Supreme Court observed “that neither the language of Rule [803(8)] nor the intent of its framers calls for a distinction between ‘fact' and ‘opinion.'” 488 U.S. 154, 168 (1988). Accordingly, “portions of investigatory reports otherwise admissible under Rule 803(8) … are not inadmissible merely because they state a conclusion or opinion. As long as the conclusion is based on a ...


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